Canada: Access By Private Litigants To Criminal Investigations' Wiretaps: Has The Supreme Court Of Canada Opened The Floodgates?

In a land-mark decision that will surely provide fodder for
those concerned with privacy rights in Canada, the Supreme Court of
Canada (the "SCC") has issued a decision on October 17,
2014 which grants private litigants access to wiretap recordings
obtained in the course of a criminal investigation conducted by the
Competition Bureau.

Context and Case History

Between 2004 and 2006, the Competition Bureau conducted an
investigation dubbed operation "Octane" in connection
with suspicions of price fixing of retail gasoline prices in the
cities of Victoriaville, Thetford Mines, Sherbrooke and Magog.
These investigations eventually led to criminal charges being laid
against 54 corporations and individuals.

In the wake of these criminal proceedings, a class action was
instituted against some of the accused as well as against other
defendants who had not been subject to charges. To support their
claim, class counsel moved to obtain the recordings and transcripts
of conversations which the Competition Bureau had obtained through
its wiretapping operation. Some of the defendants objected. They
argued that wiretapping is a significant infringement on privacy
rights and needs to be authorized by a judge beforehand.
Intercepting communications without a warrant is a serious criminal
offence in Canada. Given its nature, the evidence so gathered is
confidential, except to the limited extent that is required for
criminal prosecutions. Allowing the evidence gathered by criminal
investigators to be passed on to private parties would, according
to the defendants, allow private parties to circumvent this legal
regime, seriously expose the private lives of countless
individuals, and ultimately undermine the whole criminal
investigation process.

In July 2012 the Superior Court of Quebec granted the class
counsel's request and ordered that the Competition Bureau and
the Director of Public Prosecutions ("DPP") provide class
counsel and their experts with the wiretap recordings. The Quebec
Court of Appeal denied leave to appeal this decision on December
21, 2013.

Essentially, the SCC was called upon to address the following
question: Can a court of civil jurisdiction order the disclosure of
electronically recorded conversations which were obtained in the
course of a criminal investigation?

SCC Decision

The SCC dismissed the appeals and confirmed the Quebec Superior
Court decision, thereby permitting the recordings and transcripts
to be communicated to class counsel.

The SCC recognized that privacy is a fundamental right and that
the interception of private conversations is a very serious threat
to this right. It also accepted that the Criminal code
makes it a criminal offence to intercept and record private
communications save in very limited circumstances. It did not
accept however that private communications intercepted by law
enforcement authorities should be used for the sole purpose for
which they were obtained, which is crime prevention and
prosecution.

In the context of the Octane investigation, the Competition
Bureau was granted permission to proceed with a wiretap operation.
From then on, according to the SCC, the debate was not centered on
the law enabling the interception of the conversations, but rather
on the discovery rules applicable to the communication and
production of the evidence so obtained in civil litigations.

In Quebec, it is the Civil Code of Procedure (the
"CCP") which allows parties in civil actions to request
that third parties produce evidence relevant to their case. In
assessing such requests, the civil courts must balance all
interests at stake, including the privacy rights of all parties
concerned.

In this case, the Superior Court had set certain safeguards to
third parties who could be affected by the disclosure of these
wiretaps by allowing that the wiretaps be communicated to counsels
involved in the class action and their experts only. The SCC
reviewed this and concluded that the lower court has properly
balanced the need for greater disclosure with the infringements to
the privacy rights of the third parties concerned that would follow
from the decision. The SCC concluded that on balance, the
safeguards afforded to third parties were sufficient in light of
the need for full disclosure.

Commentary

The decision is likely to have profound implications for
Canadians across the country. First, from now on, parties to civil
proceedings in Canada may be granted access to intercepted
conservations obtained under warrant by public authorities. The
ramifications of this astounding development in Canadian Law have
yet to be fully assessed. The conversations of thousands of
ordinary Canadians, who may, for instance, have been intercepted as
part of an investigation on somebody else, no longer benefit from
all the guarantees and protections afforded by the warrants
required under Criminal Law. They can now potentially be accessed
by private parties having an interest in some private court case,
and they could be potentially exposed to the public by such
parties. In practice, the SCC is letting the lower courts decide,
on a case-by-case basis, whether the access to evidence from
criminal investigations is permissible. The SCC has provided an
overview of certain parameters which should be factored in while
determining whether such evidence should be given to private
litigants.

Another significant element is how to deal with the burden and
the cost of providing this information to private parties. In the
case of the Octane investigation, the Competition Bureau is said to
have recorded hundreds of hours of private conversations. It will
take months if not years for the Competition Bureau employees to
re-listen to the tapes, black out what needs to be blacked out,
organize the information and deliver it to the private parties
concerned. Public resources which could otherwise be deployed to
other public matters will inevitably be redirected to assist class
claimants in their private ventures. In the words of Justice
Abella, who was the only dissenting judge on the bench, civil
litigants now "benefit indirectly from an extraordinary
investigative technique they are otherwise not legally entitled
to".

The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.

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